A debtor can either undertake community service through an agreed arrangement with the Fines Enforcement and Recovery Unit in relation to offsetting a debt, or pursuant to a court order issued as part of enforcement proceedings for a debt.
Community Service as an agreement with the Fines Enforcement and Recovery Unit
Community service agreements will only be made at the pre-enforcement stage (i.e. by agreement with the Chief Recovery Officer) where the Chief Recovery Officer is satisfied that the debtor does not have, and it not likely to have within a reasonable amount of time, the means of paying the debt without them or their dependants suffering hardship [Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(6)].
The number of hours of community service to be completed by the debtor equates to 7.5 hours for every $200 owing [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(12); Fines Enforcement and Debt Recovery Regulations 2018 (SA) reg 8(1)(a)].
If, at any time, the Chief Recovery Officer is satisfied that a debtor subject to a community service agreement has the means to pay the fine without them or their dependants suffering hardship, they may terminate the agreement by notice in writing to the debtor [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(10)].
At the pre-enforcement stage, the Chief Recovery Officer has ability to enter into, vary and revoke a community service agreement without any need to apply to the court.
If a debtor enters into an agreement with the Chief Recovery Officer to undertake community service, and then fails to complete that period of community service, the Chief Recovery Officer has wide powers to enforce the debt [see Part 7 of the Fines Enforcement and Debt Recovery Act 2017 (SA)]. See also: Fine Enforcement.
An agreement between a debtor and the Chief Recovery Officer should not be confused with an order to complete a period of community service as ordered by the Magistrates Court [see section 46 of the Fines Enforcement and Debt Recovery Act 2017 (SA)]. A failure to complete a court-ordered period of community service may result in a period of imprisonment being imposed - see Community Service as an Enforcement Action below.
Community Service as an Enforcement Action
In certain circumstances the Chief Recovery Officer may apply to the Magistrates Court for an order for community service. The Chief Recovery Officer can make such an application where:
- enforcement action in relation to a debt has failed; or
- other enforcement options are unavailable or inappropriate; or
- the debtor does not have the means to satisfy a monetary amount owed without them or their dependants suffering hardship [see s 46].
The court can order that community service be performed where it is satisfied that the debtor does not have, and is not likely to have in a reasonable amount of time, the means to satisfy the amount owing without them or their dependants suffering hardship [s 46(1)].The amount of community service the court can order should equate to 7.5 hours for each prescribed unit of monetary amount owing [s 46(3)]. If a court ordered community service order is made, the debtor cannot leave the State without the permission of the court [see s 46(3)(b)].
If a debtor does not comply with a court-ordered community service order, then a term of imprisonment can be imposed in default of compliance. Such a term will be calculated on the basis of 1 days imprisonment for each 7.5 hours of community service remaining to be performed, or 12 months, whichever is less [s 47(2)].
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